Fink v. Time Warner Cable, No. 12–0299–cv.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtPER CURIAM:
Citation714 F.3d 739
PartiesJessica FINK, on behalf of herself and all others similarly situated, Brett Noia, on behalf of himself and all others similarly situated, Plaintiffs–Appellants, v. TIME WARNER CABLE, Defendant–Appellee, Time Warner, Inc., Defendant.
Docket NumberNo. 12–0299–cv.
Decision Date06 May 2013

714 F.3d 739

Jessica FINK, on behalf of herself and all others similarly situated, Brett Noia, on behalf of himself and all others similarly situated, Plaintiffs–Appellants,
v.
TIME WARNER CABLE, Defendant–Appellee,
Time Warner, Inc., Defendant.

No. 12–0299–cv.

United States Court of Appeals,
Second Circuit.

Argued: Oct. 26, 2012.
Decided: May 6, 2013.


[714 F.3d 740]


Michael R. Reese (Belinda L. Williams, on the brief), Reese Richman LLP, New York, NY, and Stanford P. Dumain, Joshua E. Keller, Milberg LLP, New York, NY, for Plaintiffs–Appellants.

Jonathan D. Thier (Jason M. Hall, Mark S. Pincus, on the brief), Cahill Gordon & Reindel LLP, New York, NY, for Defendant–Appellee.


Before: CABRANES, CHIN, and CARNEY, Circuit Judges.

PER CURIAM:

Plaintiffs–Appellants Jessica Fink and Brett Noia (“Plaintiffs”) appeal from a judgment of the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge ) dismissing their Second Amended Class Action Complaint (“Complaint”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We conclude that the allegations stated in the Complaint—which raise claims related to deceptive advertising by Defendant–Appellee Time Warner Cable (“Time Warner”)—lack facial plausibility sufficient to withstand a motion to dismiss. Accordingly, we affirm the judgment of the District Court.

BACKGROUND

Plaintiffs challenge the veracity of certain advertisements in which Time Warner allegedly described its Road Runner Internet service (“Road Runner”) as providing (1) an “always-on connection” (2) at a “blazing speed” (3) that is “up to 3 times the speed of most standard DSL packages and up to 100x faster than dial-up” and (4) the “fastest, easiest way to get online.” Plaintiffs, who sue on behalf of a putative nationwide class consisting of Road Runner subscribers, allege that these advertisements were false and misleading because Time Warner engages in network management techniques that decrease the speed at which Road Runner subscribers access certain high-bandwidth Internet applications. Plaintiffs assert that Time Warner's allegedly deceptive advertisements violate New York General Business Law § 349 and various California consumer protection statutes, and give rise to claims for common law fraud, breach of the implied covenant of good faith and fair dealing, and unjust enrichment.1

DISCUSSION

We review the grant of a motion to dismiss de novo, accepting as true all factual claims in the complaint and drawing

[714 F.3d 741]

all reasonable inferences in the plaintiff's favor. Capital Mgmt. Select Fund Ltd. v. Bennett, 680 F.3d 214, 219 (2d Cir.2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Plausibility ... depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable.” L–7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir.2011).

To prevail on their consumer fraud claims under New York and California law, Plaintiffs must establish that Time...

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301 practice notes
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 NSR.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741. A court may make this determination as a matter of law, id.; accord Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir.2013), aff'g 837 F.Supp.2d 279 (S.D.N.Y.2011), although usually such a determination is a question of fact, Quinn v. Walgreen Co.......
  • Orellana v. Macy's Retail Holdings, Inc., 17 Civ. 5192 (NRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 10, 2018
    ...may determine as a matter of law whether allegedly deceptive conduct would have misled a reasonable consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Macy's correctly argues that the first act plaintiffs allege, "[i]mprisoning alleged shoplifters for an unreasonable man......
  • Butcher v. Wendt, Docket No. 19-224-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 2020
    ...241 We review de novo the dismissal of Butcher's claims under Federal Rule of Civil Procedure 12(b)(6). See Fink v. Time Warner Cable, 714 F.3d 739, 740 (2d Cir. 2013). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on i......
  • Richards v. Direct Energy Servs., LLC, No. 17-1003-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 4, 2019
    ...the phrase "reasonable consumer" into his argument does not change our earlier analysis in any way. See Fink v. Time Warner Cable , 714 F.3d 739, 741 (2d Cir. 2013) ("[A] court may determine as a matter of law that an allegedly deceptive [representation] would not have misled a reasonable c......
  • Request a trial to view additional results
301 cases
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 NSR.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741. A court may make this determination as a matter of law, id.; accord Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir.2013), aff'g 837 F.Supp.2d 279 (S.D.N.Y.2011), although usually such a determination is a question of fact, Quinn v. Walgreen Co.......
  • Orellana v. Macy's Retail Holdings, Inc., 17 Civ. 5192 (NRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 10, 2018
    ...may determine as a matter of law whether allegedly deceptive conduct would have misled a reasonable consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Macy's correctly argues that the first act plaintiffs allege, "[i]mprisoning alleged shoplifters for an unreasonable man......
  • Butcher v. Wendt, Docket No. 19-224-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 2020
    ...241 We review de novo the dismissal of Butcher's claims under Federal Rule of Civil Procedure 12(b)(6). See Fink v. Time Warner Cable, 714 F.3d 739, 740 (2d Cir. 2013). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on i......
  • Richards v. Direct Energy Servs., LLC, No. 17-1003-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 4, 2019
    ...the phrase "reasonable consumer" into his argument does not change our earlier analysis in any way. See Fink v. Time Warner Cable , 714 F.3d 739, 741 (2d Cir. 2013) ("[A] court may determine as a matter of law that an allegedly deceptive [representation] would not have misled a reasonable c......
  • Request a trial to view additional results

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